Last week, the Federal Communications Commission (“FCC”) issued a Public Notice seeking comment on a petition for an expedited declaratory ruling relating to how the Telephone Consumer Protection Act (“TCPA”) applies to the use of soundboard or avatar technology. Specifically, the FCC requests comment on whether “calls using recorded audio clips specifically selected and presented by a human operator in real-time, a tool generally referred to as ‘soundboard technology,’ do not deliver a ‘prerecorded message’ under the [TCPA].” Comments are due on March 15, 2019; the reply comment deadline is March 29, 2019.

For the uninitiated, soundboard technology involves the use of snippets of recorded messages selected and played by a live operator to communicate with a call recipient in a real-time, two-way, interactive manner. The operator chooses the appropriate messages in response to the recipient’s specific statement or question, and carries on a dynamic conversation just like a traditional two-way telephone call. Among other things, technology provides a number of benefits to businesses and organizations that rely on telephone communications to interact with consumers. First, the use of recorded messages ensures that the same information is communicated consistently regardless of the operator, which provides for cost-effective quality-control and efficient regulatory compliance. Second, soundboard technology allows for increased accessibility because it provides assistance to those who have difficulty communicating due to, for example, speech impediments, heavy accents, or a physical or mental disability that might otherwise prevent the individual from using the telephone as part of his or her job responsibilities.

The class action plaintiffs’ bar, however, recently has begun challenging soundboard technology, alleging that it is subsumed within the TCPA’s general prohibition on the use of prerecorded messages. Staff attorneys at the Federal Trade Commission (“FTC”) also recently reversed their nearly decade-long position on whether soundboard technology constitutes a “robocall” under the Telemarketing Sales Ruleā€”as of mid-2017, the FTC’s view is that soundboard calls are robocalls. We previously have blogged about the FTC Staff’s views here and here.

Check back as we continue to follow the state of soundboard technology in the telemarketing industry.